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The Ongoing TTC “Essential Services” Debate

The issue of whether TTC employees should be declared “essential services” has been floating around for a while now, but was in the news again this weekend as the Liberal government has indicated that it is beginning consultations with the union and TTC management about whether to grant the new Mayor’s wish to make the TTC essential. As this Globe and Mail article notes, the province promised to consider the possibility if the City voted in favour of a resolution to have the TTC deemed “essential”, and that resolution passed 28-17 in a recent City counsel vote.   For my new industrial relations students, it’s useful to recap the debate.

What is this all about? The purpose of making transit “essential” is to prohibit the workers from striking.  That’s all we’re talking about.   We don’t mean “essential” in the sense that everyone needs access to transit–if that were the case, then the City would not keep raising the fares to a level that many working poor cannot afford. The TTC has been around since the 1920s, and strikes have been infrequent, though in the past there have been a few long strikes.  One report I saw noted that there have been about 70 days of strikes at the TTC in nearly 90 years, most of these happening prior to the 1980s.  For example, there was over 45 days lost to strikes in the 1970s, and less than 5 days in 2000′s (although part of the explanation is that contemporary governments have often legislated a quick end to strikes in recent years).

What are the debates?

Supporters of a TTC strike ban:   The argument from those who would like to ban transit strikes is simple enough and it is economic.   A transit strikes makes it more difficult for people to get to work and this costs the economy.  That is Mayor Ford’s argument and even the Toronto Star, a vocal critic of Ford in many aspects, agrees with this argument.  The argument is that the right of transit workers to strike to achieve better terms of employment must give way  to the economic interests of others to get to work by public transit.

That is an interesting argument, and unusual in rights discourse.   If you believe that there is a “human right” to strike–and that is what many people argue, see below–then it is an interesting debate about whether a human right should have to give way to economic expediency–the desire to be able to get to work on a transit system.  Historically, and in international human rights law (see below),  ”essential”  workers have been understood to refer only to those without whom human life, health, or safety would be imperiled.    In other words, a job is “essential” when it is needed to protect human health (i.e. doctors, ambulance drivers, police, firefighters), not when it is important to the local economy.   If you can see the difference between a doctor/firefighter and  a bus driver, then you can understand part of the debate over the meaning of “essential”.  In some cases, in Ontario, we allow workers to strike, but require some of those workers to remain at work to protect public safety.  That is how we deal with ambulance drivers, for example  (see the interesting comment on this post by Dave Wakely, who notes that the proposal to declare TTC workers essential, if passed, would mean bus drivers are more “essential” to us in Ontario than paramedics).

Another argument in favor of declaring transit workers essential is that interest arbitration, the method of resolving disputes when there is no strike or lockout right, is actually beneficial to workers, so that on balance, this is a reasonable solution.  John O’Grady, a well-respected economist and former research director for a major labour organization set out a form of this argument in an earlier Guest Blog here. That argument rests on the assumption that the interest arbitration process will continue to function in roughly the manner that it has, and that under this model, workers are well-served.

Opponents of a TTC strike ban. Some opponents of the move to make transit workers essential rely on a different sort of economic argument.  Studies show that unions often do better in interest arbitration than when they follow the strike/lockout model.  In other words, the cost of transit goes up when you ban strikes, and that increase will be passed along to taxpayers in some form (either higher TTC fees, higher taxes, or cuts to other services).  So, for example, the CD Howe Institute (a conservative think tank) claims that banning TTC strikes will increase annual payroll at the TTC by $6 million dollars.  That money will have to come from somewhere (i.e. you and me, if you live in Toronto).  To be clear, while Mayor Ford makes a lot of claims about saving taxpayers money, the proposal to ban TTC strikes is not one of them. This move is likely to increase costs, not decrease them.

A second argument against banning transit strikes is that doing so will impede collective bargaining, since both parties know that in the end an arbitrator will resolve any disputes.  Since arbitrators often “split the difference” between the parties’ positions, this discourages the parties from bargaining in a frank and open way.   Industrial relations scholars study these claims, as I have noted before. Many experts in the field argue that the best relationships are those in which the parties (unions and employers) have bargained the agreements themselves, so that mandatory arbitration does not contribute to a healthy industrial relations climate.  A response to that argument is that, at the TTC at least, the parties already behave as if they are subject to mandatory interest arbitration, since recent governments have quickly legislated TTC strikes to an end in any event, so that both sides expect this to happen.

The other main argument against banning transit strikes is that it is a violation of fundamental, internationally recognized human rights.  There is no doubt that a transit ban will be found to violate Convention 87 of the International Labour Organization, mentioned above.  Canada has ratified Convention 87.   In it’s Digest summarizing ILO law on the right to strike, we find this explanation of essential service (para. 581):

To determine situations in which a strike could be prohibited, the criterion which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population.

Applying that definition, the ILO has ruled that metropolitan transit systems and railways  (see para. 587) are not essential, so that governments are not permitted to ban the right of these workers to strike.  Opponents of declaring transit workers “essential” argue that rather than violating international human rights, the Ontario government should be a vocal advocate of these rights and a global leader in advancing workers’ rights against oppressive governments and powerful economic interests.

Neither the Union Nor the Employer Wants the Change to be Made

Interestingly, both the TTC union and the TTC itself oppose the “essential services” proposal.  The Union makes the “human rights” argument primarily, along with the argument that bargained agreements work better than imposed ones.  The employer similarly argues that bargaining should be left to the parties, while also expressing concern about the  ”economic” costs of banning its employees’ right to strike.   So the push for this legal change is one drivn by popular politics–Ford and the people who elected him are against public sector unions–and not one based based on any principled argument from the parties that actually have to deal with the workplace on a day to day basis.

Is it only the TTC that is essential, or all public transit?

It is unclear to me whether the idea is that only the TTC would be declared essential, or all public transit in Ontario.   If the TTC is essential, then aren’t  the Mississauga Transit, or the Hamilton, Sudbury,  or Vaughn transit employees also essential?  I have no idea, but I would presume so.   Not having a bus to take to work is equally disruptive for a transit user in Mississauga and a Mississauga employer as it is for a Toronto worker and a Toronto employer.  Does anyone know if the idea is to declare all transit workers in Ontario “essential”, or just TTC employees?  Can you think of an argument as to why only the TTC is essential and not other transit authorities?


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6 Responses to The Ongoing TTC “Essential Services” Debate

  1. Dave Reply

    January 24, 2011 at 9:54 pm

    Prof Doorey

    “Ambulance Drivers” that respond to 911 calls in the province of Ontario are regulated under the Ambulance Act and are Paramedics. The labour relations framework for Paramedics is set forth by the Ambulance Service Collective Bargaining Act (ASCBA). The ASCBA makes Paramedics designated workers. In Ontario Paramedics are not considered essential services workers; rather some portion of them are essential. This portion of essential Paramedics is determined by negotiations between the employer and union prior to collective bargaining. If this legislation passes, TTC staff will be considered essential and paramedics will not. If anyone wants proof the government places economic interests above the health and safety of its citizens I would suggest this is that proof.

    I wonder what the average citizen of the City of Toronto would say if they realized council has fought harder for their ability to take a bus to work than they fought for their ability to have their 911 call answered by highly trained medical professionals in their time of need. In the very near future the difference between a Paramedic and a Bus Driver may very well be that the Paramedic has the right to strike while the bus driver is essential.

    The above begs the question of if TTC staff should be essential:

    The concept of making the TTC an essential service for economic purposes is objectionable. That said, if I were to put myself in the position of the ATU I would choose the essential service model over the designated worker model, because having a model where some people go to work and others do not can be divisive. It is hard to maintain solidarity when some members are drawing a pay cheque and others are walking the line. Arbitrated settlements do tend to offer higher compensation than negotiated settlements, but arbitration can deprive the parties of an opportunity to develop creative solutions that benefit both sides.

    The public support for making TTC essential is bourn out of people identifying themselves as consumers and is reflective of one of the major issues facing unions today. Bus riders want to take the bus, drivers want the bus to keep running so traffic isn’t bad and no one thinks about the workers who keep the city running. While the TTC may be essential to a city without unmanageable gridlock, that does not make the TTC essential for the purposes of labour relations. The ILO clearly agrees. What impact do you think the recent consideration of ILO jurisprudence in Charter challenges will have on the constitutional validity of making TTC essential? Does potential chilling effect of essential services arbitration intrude into the process of collective bargaining enough to be prohibited by the logic of BC Health services?

    Dave Wakely

  2. Ronbo Reply

    February 3, 2011 at 5:28 pm

    Prof Doorey

    I have two questions; 1. I’ve always wondered, how is it possible for the province to legislate the union members back to work (which has been the case several times) when it is a perfectly legal right for a union to strike? ….Something seems fishy to me….By the government doing so, have they not denied the union it’s legal rights?
    2.I have been told that if the TTC becomes an essential service it would cost the taxpayers millions more per year, reason being; during the initial arbitration: the assigned arbitrator must weight the present TTC agreement against other essential services agreements, meaning they must equalize the particulars such as wages, benefits, pensions etc; to the same levels as other already existing essential service agreements….Is this correct?

    thanks.

  3. Ken Johnson Reply

    February 3, 2011 at 11:12 pm

    Well said Dave ! As a Paramedic, in Toronto, it seems rather foolish that based on the percent negotiated, as an example say 75% working… a stretch of 4 shifts, 3 of them I would be considered essential, and the last day .. no longer essential. This was borne from the Mike Harris erra (intentional) in Ontario. He chose, one year, to make Snow Plow Operators essential. They were striking, and there had been a snow/ice storm. Some of Mike’s constituants found themselves sliding into the ditch. Mike made them essential, so sliding into ditches would stop. Forgetting entirely about the Paramedic that helped fish them out of the ditch and shuffled them off to hospital.
    Thank you for providing an informed answer to the TTC Essential Service debate.

  4. Roy fleming Reply

    June 11, 2014 at 1:57 am

    What is ironic in this whole situation is ATU Local 113 just ratified a 4 year agreement that we were told was the best possible deal for us. While it did include “job security” for the 4 years. Unfortunately it also had numerous “take aways”. the most notable is that the lowest paid workers will receive no wage increase at all except for a $500 signing bonus each year. the clerical staff will also receive less than the 2% each year that the bus drivers will receive. There is also a new 1st day no pay penalty for each incident of sick after the 4th incident each calender year. Normally we receive 75% pay for all days sick (with a Dr. note for each and everyday sick). Minor changes to benefits, some good for us, some good for management. A lot of workplace rules and language changes that most workers are unaware of. We were warned over and over by our Union Leaders that if we voted the offer down that the arbitrator may take away our job security. I tried to clarify that arbitrators don’t penalize people for voting down an offer. they listen to both side’s arguments regarding the validity of their requests and consider what is out there in similiar markets and then make an informed decision with all facts considered. the biggest complaint regarding the offer was that the offerred wage increase should have been spread across all wage classifications, even if the Bus drivers received less overall. The Union was not interested in this solution at all. we were told this was the best and only offer we could get. then 2 weeks later the TTC has a multi-million surplus to return to the city. Hmmmmm.

  5. Fernando Reis Reply

    June 13, 2014 at 3:41 pm

    What arbitrators typically do when a recommended settlement is rejected is to award the rejected settlement, unless there is some compelling reason to deviate from what the parties agreed to. Usually, this occurs when there is a split recommendation (a majority on the union’s negotiating committee recommends the deal but a minority hold out). In such a scenario, if the deal is rejected the arbitrator will want to hear evidence as to why there was a split recommendation. If there is evidence that a particular group within the bargaining unit did not support the deal then the arbitartor may take that into account in fashioning an award. This is exactly what happened with the TTC the last time they went to arbitration. I believe the deal at that time was rejected becuae of an issue with the maintenance department. It was a split recommendation. In order to craft an award that addressed this “fly in the ointment”, Arbitrator Burkett awarded a special adjustment to the maintenance department. However, with respect to a unanimous recommendation that is turned down, arbitrators tend to award the rejected memorandum. In any event, the TTC deal looks decent and I don’t think the union would have done better at arbitration. Also, considering some of the strikes that have happened in recent years in the transit sector (for eg Viva) the union would be hard pressed to justify hitting the bricks when this deal was on the table. I don’t believe the strikes resulted in better outcomes for the workers, but I could be wrong.

  6. Nicholas Finney Reply

    April 11, 2016 at 1:52 pm

    A somewhat belated response from the United Kingdom. I have been studying this subject for some years and have particularly noted the discussions within the ILO regarding the issue of banning strikes in essential services. The UK is currently seeking to put tougher laws restraining strike action through requiring minimum thresholds for those taking part in a strike ballot. Personally I think that this is misguided.
    I take the point entirely that the Ontario legislature is concentrating on banning strikes in transit services for economic reasons and the comparison is drawn with Paramedics who by any moral standard should be pressed not to hold strike actions as compared to transit workers.
    But the criteria for assessing what is an essential service in the first instance and secondly providing adequate binding arbitration to resolve disputes in essential services need to be much better debated and properly defined.

    For me it is not the economic cost in terms of Government but rather the damage to innocent individual members of the public which matters. The poor, the sick , the elderly , the young mothers and fathers, these are all the victims of strikes in essential services. Why ? Because they have the least capability to cope with the loss of such services. The government should therefore stand so to speak in loco Parentis to defend the rights of these innocent citizens. I would therefore advocate a different starting point for the consideration of banning strikes in essential services.

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